The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to benefits after May 14, 2018. A teleconference hearing was held on March 16, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after May 14, 2018.

Decision

The worker is entitled to benefits after May 14, 2018.

Background

The worker filed a Worker Incident Report with the WCB on October 10, 2017 indicating injury to their low back, left shoulder and bicep arising out of an incident at work on October 9, 2017 when they helped a resident who had fallen. The worker attended for an initial physiotherapy assessment on October 11, 2017 reporting sharp pain in their low back, soreness in their left upper back area, a pulling sensation in their left upper arm and pins and needles down the back of their left leg into their foot. The physiotherapist diagnosed a left biceps and triceps strain with left lumbar radiculopathy and recommended restrictions of sedentary duties, no lifting over 5-10 pounds, allow frequent position changes, avoid prolonged walking over 5-10 minutes, and no sitting over 20 minutes. These were provided to the employer on October 13, 2017.

On October 16, 2017, the worker saw their treating family physician and reported pain radiating down their leg to their toes. The treating physician noted the worker appeared to “…be in a lot of pain, unable to sit on the chair properly, Pain when standing up and unable to straighten fully” and diagnosed sciatica with a query as to a bulging disc. The physician recommended the worker remain off work for one week. At follow-up appointment with the physiotherapist, the worker’s diagnosis was updated to include a likely disc herniation in addition to the left biceps and triceps strain with left lumbar radiculopathy. A November 29, 2017 MRI study of the worker’s lumbosacral spine indicated “Small disc extrusion at L5-S1 contacts both S1 nerve roots. No nerve root compression or spinal stenosis present.”

Due to ongoing complaints, the worker’s restrictions were updated to provide they were unable to drive longer than 10 minutes; no lifting over 10 pounds; no prolonged sitting over 10 minutes; allow frequent positions changes; and no prolonged standing or walking over 30 minutes. The updated restrictions were provided to the employer on December 13, 2017. On January 5, 2018, the worker’s treating family physician referred the worker to an orthopedic specialist.

At the request of the WCB, the worker attended a call-in examination with a WCB medical advisor on January 30, 2018. The advisor concluded the worker’s initial diagnosis was a left lumbar radiculopathy, with the current diagnosis being the same but in the healing phase. The WCB medical advisor found the worker’s presentation at the examination indicated “…no findings…that were concordant with a left lumbar radiculopathy. The findings described…are not accounted for pathoanatomically [and] would not support a lumbar radiculopathy or other structurally based diagnosis.” Further, the WCB medical advisor noted the natural history of recovery for a lumbar radiculopathy was typically from three months to one year; however, “…in the absence of radicular signs and in the presence of significant non-organic findings, it is likely that [the worker] is limited primarily by subjective pain expression.” The WCB medical advisor therefore recommended the worker return to work with the following restrictions: no prolonged sitting or standing without the ability to change position; no repetitive bend, twist or crouch; no lifts greater than 10 pounds; and no repetitive stair climbing.

Following discussions between the worker, the employer and the WCB, the worker began a graduated return to work plan on February 20, 2018. The worker missed time from work occasionally due to pain complaints and on March 20, 2018, attended a pain clinic for an injection. On March 21, 2018, the worker underwent a nerve conduction study, noted to be “…a limited, but normal study. There was no evidence of peripheral neuropathy or active lumbosacral radiculopathy at the left side to explain her symptoms.” The neurologist noted the worker “…demonstrated remarkable pain behaviour during the interview and physical examination” and recommended against surgical intervention and in favour of physiotherapy and continuing treatment at the pain clinic.

A WCB medical advisor again reviewed the worker’s file on April 26, 2018. By letter dated May 3, 2018, sent May 7, 2018, the WCB advised the worker it had determined their left lumbar radiculopathy, sustained as a result of the compensable accident, was resolved and they were not entitled to benefits after May 14, 2018.

On December 10, 2018, the worker underwent an L5-S1 microdiscectomy. A WCB medical advisor reviewed the surgical report and the worker’s file on January 10, 2019. The WCB gathered further information and on February 6, 2019, placed the worker on wage loss and medical aid benefits effective to December 10, 2018.

In a February 13, 2019 memorandum to file, a WCB orthopedic consultant stated the worker was capable of returning to work from May 15, 2018 to the time of their surgery on December 10, 2018 as suitable modified duties were available from their employer and the medical evidence supported the worker was not totally disabled during that time.

The worker again attended for a call-in examination on April 8, 2019 with a WCB medical advisor. The medical advisor provided an opinion that the worker’s post-surgical progress was satisfactory and recommended restrictions. The WCB provided the employer with a proposed graduated return to work schedule on April 24, 2019.

The WCB wrote to the worker on May 27, 2019 indicating they were not entitled to wage loss benefits after May 14, 2018 until their surgery on December 10, 2018 as the employer had suitable modified duties available.

On January 24, 2020, the worker’s representative requested reconsideration of the WCB’s decision the worker was not entitled to wage loss benefits from May 15, 2018 to December 9, 2018. In their submission, the representative noted that the worker’s treating healthcare providers supported the worker was not able to work due to their symptoms, including “…intense radicular pain down her left leg and back pain symptoms.” Further, the worker’s representative noted on April 29, 2018, the worker’s physiotherapist noted the worker could not return to regular duties and was awaiting surgery. On March 10, 2020, the employer’s representative provided a submission in support of the WCB’s decision, and the worker’s representative submitted a response on April 3, 2020. On April 8, 2020, Review Office determined the worker was not entitled to benefits after May 14, 2018. Review Office relied on the opinion of the WCB orthopedic consultant and the evidence on file as to the worker’s subjective complaints of pain and found those complaints could not be accounted for in relation to the mechanism of injury and the compensable injury. As such, Review Office further found the worker was not completely disabled from work and not entitled to benefits after May 14, 2018.

The worker’s representative filed an appeal with the Appeal Commission on September 9, 2020. A teleconference hearing was arranged and held on March 16, 2021.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On June 24, 2021, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Medical aid is provided for under s 27 of the Act which states that the WCB may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor who provided a written submission to the panel in advance of the hearing and made oral submissions in the hearing on behalf of the worker. The worker provided testimony in response to questions posed by their advocate and by members of the appeal panel.

The worker’s position, as outlined by the worker advisor, is that the worker is entitled to further benefits as they were not recovered from the compensable workplace injuries by May 14, 2018 but continued to have a resulting loss of earning capacity and continued to require medical treatment for their compensable injury.

The worker advisor described the mechanism of the worker’s injury as a reflex action in which the worker in the course of protecting a resident, caught the individual to arrest their fall. In doing this, the worker suffered immediate shocking pain from their left foot up the leg and into their left low back and side. The worker suffered a lumbar spine injury and the WCB ultimately accepted a diagnosis of lumbar disc extrusion at the L5-S1 level with left leg radicular pain.

With respect to the worker’s recovery and return to work from the compensable injury, the worker advisor outlined the evidence in support of their position that the worker had not recovered when the WCB stated they were. The worker advisor noted that the worker returned to work in February 2018, despite the treating physician’s February 12, 2018 opinion that the worker was not capable of returning to work until the worker had adjusted to the new medication prescribed. On February 23, 2018, the treating physician approved a return to light duties only and only to a maximum of five hours per day. With the return to work, the worker reported a number of concerns including the physical aspects of the modified duties that necessitated turning and twisting their back and trying to get their car out of heavy snow after shifts. On March 9, 2018, the treating physiotherapist clarified the worker’s restrictions, noting walking and standing should be limited to less than 30 minutes, with sitting or driving limited to no more than 15 minutes. The worker advisor noted that just in order to travel to work, the worker was required to break those restrictions.

Although the WCB denied further physiotherapy on March 15, 2018 stating no further treatment was warranted based upon the opinion of the medical advisor set out in the January 30, 2018 call-in examination, on March 20, 2018, the worker was assessed at a pain clinic and received a spinal injection and recommendation for surgery. Further, the pain clinic physician concluded “...this patient is suffering from low back and left leg pain that appears to be related to the nerve root compression at S1 by the L5-S1 disc extrusion”. The physician went on to note that the worker’s modified return to work attempt was not successful due to poorly controlled pain from S1 nerve root compression and recommended a surgical referral. The pain clinic physician recommended the worker restrict household chores such as cooking or cleaning and the treating physician provided a medical note indicating the worker was not capable of any work from March 21 to 23, 2018. On March 28, 2018, the treating physician made referrals for orthopedic surgery and indicated the worker was unable to work even modified duties.

The nerve conduction study report dated March 21, 2018 included an opinion from the physiatrist that the worker was “suffering from chronic pain syndrome” and did not recommend surgery at that point, suggesting instead a multi-disciplinary approach through physiotherapy and an active range of motion program as well as continued pain injections. The worker advisor pointed out that the WCB failed to accept this recommendation, as no physiotherapy or active range motion programs were authorized or considered for the worker. But the WCB medical advisor did rely upon the physiatrist’s finding that the worker exhibited “remarkable” pain behaviour, although the WCB did not accept the diagnosis of chronic pain syndrome as compensable despite the specialist indicating it was related to the workplace incident. There is no explanation in the file for why the WCB did not authorize further treatment as recommended.

The pain clinic physician contacted the WCB in late April and early May 2018 to indicate they continued to recommend surgery and followed up with a written report on May 2, 2018 outlining that the worker’s symptoms were a result of the “acute injury that occurred at work and correlates to the MRI findings of a disc extrusion at L5-S1.”

Despite these recommendations from the treating professionals, on May 3, 2018, the WCB advised the worker it determined that the left lumbar radiculopathy sustained as a result of the October 9, 2017 workplace injury had “essentially resolved” by the time of the call-in examination and that their ongoing symptoms and total disability could not be related either to the March 20, 2018 injection or medically accounted for in relation to the workplace injury. Further, ongoing restrictions could not be related to the workplace injury and as a result, the worker’s benefits were terminated as a result, effective May 14, 2018.

With respect to the Review Office finding that the worker’s condition was attributable to a non-compensable pre-existing degenerative back condition, the worker advisor noted that this is based upon the call-in examination notes which indicate that “...the October 9, 2017 MOI likely provoked nerve root irritation at the L5-S1 superimposed on a pre-existing disc lesion” but that there is no imaging that reveals any such pre-existing lesion and therefore this opinion is speculative. Further, the worker’s previous back injury claims were all resolved well before the 2017 workplace accident and the worker was not seeking medical attention for their back for any reason prior to the accident.

With respect to the WCB’s view of the worker’s pain behaviour as exaggerated, the worker advisor stated that the worker’s treating physician does not comment in this regard, nor did the emergency room physician that examined the worker on May 8, 2018 and expedited the surgical referral while also changing the worker’s pain medication. Further, the pain clinic physician, a specialist specifically trained to identify signs of exaggerated pain or narcotic-seeking behaviours, also did not report any such behaviour in their examination of the worker.

In response to questioning by panel members, the worker confirmed that at the time of the accident, they had been working in this physically demanding position for approximately two years since the previous work-related back injury. There were no other injuries or back difficulties in the intervening period. The worker described to the panel that during the period from May through to October 2018, they were in a lot of pain and therefore unable to do very much. In terms of treatment, the worker confirmed that they continued with physiotherapy and consulted with the orthopedic surgeon during this time.

The worker advisor stated that the medical evidence and opinions on file confirm that the disc extrusion and related radicular symptoms that began on the date of the accident were not resolved by May 14, 2018. When the WCB terminated the worker’s benefits, it indicated there were no restrictions and the worker had recovered, but the worker’s attending physician indicated the worker could not return to any modified duties even with restrictions until after the spinal surgery. At that time, the employer indicated that they required written restrictions to see if they could accommodate the worker but since there was no medical provider willing to provide return-to-work restrictions to the employer, the employer could not offer suitable modified duties.

The worker advisor argued that in these circumstances it was reasonable that the worker relied upon the opinion of their treating physician that they were incapable of a return to modified work in any form during that time period. The worker was until May 14, 2018 in receipt of full wage loss benefits since the aggravation of symptoms in late March, 2018 that arose after a return to modified work. The worker was also in receipt of independent living and personal care assistance at that time which speaks to their level of functioning. Both attending physicians certified the worker to be incapable of modified duties during this period. After May 14, 2018, the only employment available to the worker was regular duties as the WCB indicated there were no restrictions required, and the attending physician indicated the worker was totally disabled. Therefore, the worker had no option but to remain off work and in doing so, they adhered to the only medical direction provided to them.

In sum, the worker’s position is that the evidence confirms that as of May 14, 2018, they continued to require medical aid and remained disabled from all employment as a result of the injury sustained in the compensable workplace accident of October 9, 2017 and therefore, they should be entitled to benefits after that date.

Employer’s Position

The employer was represented in the hearing by its disability management coordinator and an advocate who provided submissions on behalf of the employer.

The employer’s position is that the worker is not entitled to benefits after May 14, 2018 as the medical evidence on the WCB file as well as the additional information requested by the panel confirms that the worker had recovered from the effects of the workplace injury and was fit to work at light duties available with the employer at that time.

The employer’s advocate noted changes in the worker’s report of the mechanism of injury over time, with respect to the size of the individual resident and the nature of the motion required to catch and hold the resident. The employer’s advocate pointed to the fact the worker was able to continue their shift and work the next shift without seeking medical attention or requiring modified duties as supporting the employer’s position that the injury was not as significant as the worker has suggested.

The employer’s advocate stated that the diagnostic imaging confirmed the worker had a history of degenerative joint space narrowing and osteoarthritis at the site of the current complaints, indicating a history of lower back problems. Further, the imaging confirmed the absence of both nerve root compression and spinal stenosis and does not support or explain the worker’s pain behaviour as documented in the file, nor the presence of left-side symptoms only.

The employer does not believe the worker sustained an acute disc injury in the accident, noting that the worker would have experienced acute pain and would not have been able to continue working had that been the case. The imaging reveals a small disc extrusion only, of the kind that is common in aging individuals. The employer’s advocate relied upon the statement of the WCB medical advisor that although the MRI is a sensitive investigative tool, it is not specific in terms of determining onset of findings or determining pain generators. The WCB medical advisor confirmed, on the call-in examination, a lack of radicular findings as well as noting pain that was not commensurate to the clinical and diagnostic findings. The employer’s advocate also pointed to the statements in the call-in examination report as to the specific symptoms the worker reported that were not accounted for pathoanatomically.

The employer’s advocate reviewed the findings of the physical medicine specialist who conducted the nerve conduction study and noted that the conclusions are consistent with those of the WCB medical advisor, particularly with respect to absence of evidence of radiculopathy in the imaging and the worker’s pain behaviour, described as “remarkable.”

The employer’s advocate noted that the worker was found to be capable of a return to modified duties with restrictions in February 2018 and the employer was able to accommodate those restrictions with “extremely light duties” as an “extra”. The worker was advised to work at their own pace within the restrictions, taking breaks and shifting position as needed. Further, the employer advised the worker not to physically intervene in any resident care and to communicate any concerns, as documented in the February 19, 2018 return to work plan. The worker continued in those duties through March 19, 2018 and then did not return to work again after receiving a pain injection on March 20, 2018.

The employer’s advocate noted there is no evidence of anything that happened thereafter to render the worker totally disabled from all employment as of May 14, 2018 and confirmed that when the claim ended in May 2018, the employer would have continued the accommodation of sedentary duties thereafter if the worker had expressed an interest and provided medical information to support the need for restricted duties. The employer’s advocate confirmed that the worker, on May 7, 2018, requested a return to regular duties and was advised that the employer would require medical confirmation of the worker’s current restrictions and a physician’s approval for a return to work. The advocate described that the employer would routinely accommodate workers with physical restrictions and noted that had the worker provided such information, they would have been accommodated in a return to work and would not have had any loss of earning capacity. As the worker did not provide any medical information as to their restrictions to the employer after May 7, 2018, the employer did not make any offer of modified duties beyond that date

The employer’s advocate noted that the WCB medical advisor set out in a memorandum to file dated February 13, 2019 that “The medical findings as reported do not suggest that [the worker] was totally disabled from May 15th until the date of [their] spinal surgery of December 10, 2018. A physiotherapist’s report dated April 30, 2018 indicated that [the worker] was capable of modified work. A contemporaneous call-in examination outlines in detail, non-specific lower back and leg pain, but does not confirm total disability. Workplace modifications were also available...” The medical advisor also noted that complete rest was not indicated for such injuries.

The employer’s advocate also made arguments that the worker’s December 2018 surgery should not have been accepted by the WCB as being related to the workplace injury of October 9, 2017 noting that the evidence confirms the worker has a degenerative back condition and that the degenerative condition is the cause of their ongoing low back problems rather than the workplace injury. Further, the WCB failed to follow its own policy on approval of elective surgical procedures in this case.

The employer’s advocate further described the return to work attempts beyond 2018 and outlined additional medical evidence arising out of the surgical procedures.

In sum, the employer’s position is that the evidence, in totality, does not support a determination that the worker is entitled to benefits after May 14, 2018. The medical opinions confirm the worker was fit for light duties between May and December 2018 when the first surgery took place, and further, that the surgery was not required in relation to the workplace injury. Further, the employer was able to accommodate any restrictions with modified duties such that any loss of earning capacity was not due to the workplace injury.

Analysis

The issue for determination on appeal is whether the worker is entitled to benefits beyond May 14, 2018. In order to grant the worker’s appeal, the panel would have to determine that the worker continued to require medical aid to cure and provide relief from that injury or that the worker continued to experience a loss of earning capacity beyond May 14, 2018 as a result of the compensable workplace accident of October 9, 2017. For the reasons set out below, the panel was able to make such a determination.

The panel acknowledges the submissions made by the employer’s representative with respect to the decision and decision-making process of the WCB with respect to the retroactive approval of the worker’s December 2018 surgery but notes that the WCB adjudicative-level decision to approve the surgery has not been the subject of an appeal to Review Office and is not a question before the panel in this appeal. Therefore, that issue has not been addressed in these reasons.

In reviewing the evidence in respect of the worker’s appeal, the panel focused its attention in particular on the evidence as to the worker’s medical status and degree of disability as of May 14, 2018. The panel noted that the WCB’s determination that the worker was not entitled to benefits beyond May 14, 2018 was based upon finding that the worker’s injury should have resolved by that time as well as the absence of medical findings that would account for the worker’s pain behaviour.

The WCB medical advisor, in the January 2018 call-in examination, concluded the initial diagnosis to account for the worker’s reported left low back pain with left lower limb symptom radiation “...was likely a left lumbar radiculopathy” which is supported by the initial medical reporting. The medical advisor went on to note that MRI is not a tool that can determine timing of onset of a given finding or determine a specific pain generator and stated that this was particularly relevant given the worker’s “...history of left low back and left lower limb symptom radiation with positive dural tension findings and...the small disc extrusion at L5-S1 is seen to contact both S1 nerve roots.” In the worker’s case, there is an absence of right lower limb symptoms that is not accounted for by the MRI findings. The medical advisor also noted a lack of pathoanatomic findings from the call-in examination that could account for the worker’s continuing pain response and therefore determined that the worker’s left lumbar radiculopathy was “in the healing phase” noting such injuries are expected to naturally resolve within three months to one year. With respect to the need for continuing restrictions, the medical advisor concluded that “At this point, in the absence of radicular signs and in the presence of significant non-organic findings, it is likely that [the worker] is limited primarily by subjective pain expression” which was found to be “amplified” based upon the examination findings. Nonetheless, restrictions were recommended, to be reviewed in 8 weeks, as well as a facilitated and graduated return to work and home exercise program.

When the WCB medical advisor again reviewed the worker’s medical file on April 26, 2018, the findings from the March 21, 2018 physical medicine physician's report and the March 23, 2018 pain clinic physician’s report were considered. At that time, the medical advisor concluded that the only relationship between the worker’s currently reported low back symptoms and the original injury was the worker’s reported low back and left lower limb pain, stating “The nature and the severity and the recent provocation of that reported pain is atypical and is unlikely medically accounted for on the basis of the October 9, 2017 MOI [mechanism of injury].” This opinion was confirmed by the medical advisor on a further review, dated May 9, 2018.

In the period following the call-in examination and leading up to the WCB’s termination of benefits, the worker continued to seek regular care from their family physician and physiotherapist, and was also referred for orthopedic care, surgical consultation, pain clinic assessment and assessment by a physiatrist. In a referral letter dated January 8, 2018, the treating family physician wrote that the worker had started to improve but then symptoms worsened in late December “...to the point where [they] can’t stand without pain. [They have] no other red flags of back pain.” On January 15, 2018, the family physician recorded findings of the left thigh circumference slightly larger than the right, numbness to light touch over the dorsum of the left foot and weakness to extension of toes of left foot. Referrals to the pain clinic and orthopedic specialist were pending as of January 24, 2018. The family physician records some improvement in symptoms by February 12, 2018 and proposes the worker can return to light duties once they have adapted to their new medication. In early March 2018, the physiotherapist requested approval of additional treatment noting findings of lumbar active range of motion (flexion, side flexion and rotation) at 75% with symptoms down the left leg and full extension with pain as well as a positive straight leg raise. The rationale provided for the request for 4 weeks of additional treatment is that the worker’s symptoms have been aggravated by return to work activities. Restrictions are recommended to continue.

The worker was treated by a pain clinic physician on March 20, 2018, who noted the worker to be “...in obvious distress. [They] walked with a limp. Any movement of [their] left leg exacerbated [their] symptoms. I attempted to perform a neurologic examination of [their] lower extremities but was unable secondary to ongoing discomfort in [their] left leg.” The physician concluded the worker was suffering from low back and left leg pain that appeared to be related to the nerve root compression at S1 resulting from the L5-S1 disc extrusion. An injection was administered to provide pain relief and the worker was advised that a referral to a surgeon would be appropriate if their discomfort continued to the same degree. Further, the worker was advised to seek emergency care if their pain became too much to manage at home.

A physiatrist assessed the worker on March 21, 2018. Nerve conduction studies revealed normal results but were limited in scope and the physical examination was limited due to pain. The physiatrist concluded the worker was suffering from chronic pain syndrome after her accident and did not recommend surgery, but rather, physiotherapy and active range of motion programs, as well as continuing injections for pain.

The family physician’s reports confirm the worker’s pain symptoms increased in late March such that the worker was not capable of continuing to work, even on modified duties. The physician requested surgical referrals at this time. Chart notes from April 16, 2018 indicate the worker reported feeling worse since receiving the pain injection, unable to lie on their back or left side or sit for more than 10-15 minutes. On May 2, 2018, the worker attended for follow up care at the pain clinic, reporting difficulty with all activities of daily living secondary to severe pain in their back and left leg, “at essentially all times”. The pain clinic physician concluded:

“...it would certainly seem [their] symptoms are related to the acute injury that occurred at work and correlate to the MRI findings of a disc extrusion at L5/S1. Unfortunately the transforaminal epidural steroid injection did not provide any symptomatic improvement, and [they continue] to suffer greatly. [They] also [have] not responded to any of the antineuropathic medication that [their] family physician has initiated in a very reasonable way. At this point I recommend that [the worker] see a spine surgeon given the severity of [their] symptoms and the MRI findings.”

The worker’s medical records on file confirm that the worker sought emergency treatment for “severe low back pain” on May 8, 2018 and sought care from their family physician on May 9, 2018. The family physician’s chart notes from that date indicate the worker was assessed with chronic back pain from the bulging disc that was not improving with physiotherapy or facet injection, and further, that the worker was awaiting a spinal clinic consult and had their pain medication adjusted. The worker again saw the family physician on May 28, 2018 noting some improvement in their pain and that they had stopped taking the prescribed medications. The physician’s notes indicate a query as to whether the pain relief was due to subsiding of the disc herniation. The June 15, 2018 chart note indicates the worker’s report of return of back pain with radiation to the foot and that the worker had restarted their medications.

The worker was assessed at a spinal clinic on July 24, 2018 and the neurosurgeon recorded findings on examination of “Cranial nerves are grossly intact. [They appear] to be in mild distress while standing in the clinic room today. [They have] normal strength and sensation in both lower extremities but has a positive straight leg raise sign on the left side.” The surgeon also reviewed the MRI imaging and concluded that the worker “...has clinical evidence of a left S1 radiculopathy” consistent with the imaging and recommended surgery for decompression of the left S1 nerve root.

The panel also reviewed the medical opinions provided to the worker’s disability insurance plan by the consulting physician, who reviewed the worker’s medical records and WCB claim file information. The consulting physician noted that although the WCB medical advisor concluded the worker’s radiculopathy had resolved and the worker amplified their symptoms, the pain clinic physician and neurosurgeon both agreed that the radiculopathy was still present and explained the worker’s symptoms, and further that the worker needed surgery as the symptoms had not yet settled. The physician went on to provide that the worker’s “...symptom amplification is somewhat of a concern.... However, this does not prove [their] underlying [symptoms] and condition is not real – personality can influence presentation [and] interactions with others.” The physician concluded that “...overall there seems to be continuity of [symptoms and] disability to work injury.”

The panel also considered the January 8, 2019 opinion of the WCB medical advisor, who concluded with the benefit of hindsight that:

“The current diagnosis is lumbar disc extrusion at the L5-S1 level with left leg radicular pain unresponsive to non-operative measures, leading to a left L5-S1 micro discectomy December 10, 2018. The discal pathology and subsequent surgery is on balance seen to be in relation to the workplace event of October 9, 2017. A perusal of the case record and the clinical presentation does demonstrate some concerns regarding the long term success of such a venture. In particular, a degree of abnormal pain behaviour is noted on several clinical assessments, making an objective appraisal of disability very difficult.”

While the early medical reviews by the WCB medical advisor point to an absence of findings to explain the worker’s symptomatic presentation and suggest that the worker’s pain response is atypical and incongruent with the findings, the worker’s treating physicians including the family physician, the pain clinic specialist and the orthopedic surgeon, do not reach the same conclusions. The physiatrist comments upon the worker’s “remarkable pain behavior” on assessment but concludes it is due to chronic pain syndrome arising from the workplace incident and recommends ongoing treatment by the pain clinic as well as physiotherapy. As noted by the worker advisor, the WCB did not follow up on these recommendations.

Having carefully reviewed the medical reporting and opinions, the panel finds that there is evidence of continuity in the worker’s symptomatic presentation which leads the panel to conclude that the worker’s injury had not resolved by May 14, 2018. This finding is supported by the reporting of the family physician throughout the period from the date of injury through the spring of 2018. It is also supported by the conclusions reached by the pain clinic specialist in March and May, 2018, and by the orthopedic surgeon consulted in July 2018. Further, this conclusion was supported by the opinion of the disability insurance provider’s medical consultant who reviewed the file in September 2018 and ultimately, by another WCB medical advisor in January 2019, upon reviewing the file for surgical approval.

In this case, the WCB made its determination based upon expected injury resolution timeframes rather than evidence of actual resolution of the worker’s injury. Relying upon call-in examination findings that suggested the worker was “in the healing phase” of their injury, the WCB focused attention on the worker’s pain behaviour which it found to be amplified and incongruent with the medical findings. In the months subsequent to the call-in examination, the worker’s treating physician continued to provide care and adjust medications to address the worker’s symptoms, all the while continuing to write referral letters to specialists. This pattern of behaviour is not congruent with a patient in the recovery phase of their injury but suggests an ongoing concern that requires additional medical attention. Furthermore, none of the specialists consulted provided an opinion that the worker was recovered from their injury. Although there are differences in their opinions, the specialists are consistent in their recommendations that the worker receive further medical treatment, whether through the pain clinic or physiotherapy or spinal surgery.

The panel also noted that the worker’s treating family physician recommended the worker remain off work after March 28, 2018 and did not recommend modified duties and on April 3, 2018, in a referral letter to the spine clinic, stated “I don’t think [they] can go back to [their] current job in this condition.” The WCB medical advisor, on April 26, 2018, provided empiric restrictions that would be “concordant with an L5-S1 radiculopathy at 28+ weeks post injury”, which would have allowed the worker to return to modified duties, which were available as noted by the employer, but none of the other physicians who assessed the worker in person during this period addressed the question of the worker’s ability to return to work, such that the advice available to the worker was that provided by the family physician and the contradictory opinion of the WCB medical advisor. The panel notes the September 13, 2018 opinion from the medical consultant for the disability insurance provider that the worker was likely capable of no more than sedentary duties given the medications prescribed during the period after May 14, 2018. There is also an opinion from the WCB medical advisor in February 2019 indicating the worker may have been capable of work with restrictions between May and December 2018. These later opinions on the question of the worker’s degree of disability are provided with the benefit of hindsight, however, and were not available to the worker in May 2018. Given the WCB position taken in May 2018 that the worker was or should have been recovered from their compensable injury and was exaggerating their symptoms, the determination that the worker was not entitled to further benefits was made without adequate investigation of the further question as to the worker’s functional capabilities at that time.

On the basis of the evidence before the panel, we therefore conclude, on the standard of a balance of probabilities, that the worker’s injuries sustained in the compensable workplace accident of October 9, 2017 were not fully resolved by May 14, 2018. In making this determination, the panel makes no determination as to any specific benefits that the worker may have been entitled to and refers the question of specific entitlements to the WCB for adjudication. The worker is entitled to benefits after May 14, 2018 and the worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 16th day of July, 2021